Opinion of the Court
FLETCHER, Judge:The common issue granted for review in these cases (6 M.J. 168; 8 M.J. 48) is the lawfulness of the pretrial confinement procedure provided in paragraph 3-25, Air Force Manual 111-1 (C 2, October 8, 1976). This provision states:
3-25. Hearings on Pretrial Confinement. A person subject to military law may be temporarily confined pending a formal determination as to whether continued pretrial confinement is warranted. That determination may be made only by an officer acting as a neutral and detached magistrate, who is empowered and has the duty to determine impartially whether the person should remain in pretrial confinement as provided by paragraph 20c, MCM, 1969 (Rev.).
(Emphasis added.)
The particular provision under attack adds:
b. Except as provided below, the determination is made by the officer exercising Air Force special court-martial jurisdiction over persons at the place of confinement. He may hold the hearing personally or may designate a staff judge advocate to do so, in which case the staff judge advocate makes a recommendation to him within 24 hours of the hearing, with a summary of the hearing.
In each of the cases before us, the officer exercising special court-martial jurisdiction ordered the continued pretrial confinement of appellant. He did so on the basis of his staff judge advocate’s report of a hearing held on the pretrial confinement questions and the latter’s recommendation.
The first question confronting this Court is whether it is proper for the staff judge advocate to conduct the pretrial confinement hearing and submit a report of this hearing and his recommendation to the officer making the confinement decision. The United States Air Force Court of Military Review, without stating its reasoning, approved such a procedure in United States v. Williams, 2 M.J. 275 (A.F.C.M.R.1976). The *396Government, more particularly, argues that this procedure is legally sufficient and proper in light of the limited need for fact finding and determinations of credibility in such hearings. See Gerstein v. Pugh, 420 U.S. 103, 120-23, 95 S.Ct. 854, 866-67, 43 L.Ed.2d 54 (1975). Cf. Holiday v. Johnston, 313 U.S. 342, 61 S.Ct. 1015, 85 L.Ed. 1392 (1941). In particular, the Government relies heavily on the following language in Gerstein v. Pugh, supra 420 U.S. at 123, 95 S.Ct. at 867, to support this purported two-step procedure:
Although we conclude that the Constitution does not require an adversary determination of probable cause, we recognize that state systems of criminal procedure vary widely. There is no single preferred pretrial procedure, and the nature of the probable cause determination usually will be shaped to accord with a State’s pretrial procedure viewed as a whole. While we limit our holding to the precise requirement of the Fourth Amendment, we recognize the desirability of flexibility and experimentation by the States.
Additionally, it asserts that a staff judge advocate cannot be considered disqualified to conduct the hearing simply because of the nature of his legal duties for the command. See Article 6(b), Uniform Code of Military Justice, 10 U.S.C. § 806(b).
We agree that flexibility should be initially permitted as to the mechanics of the pretrial confinement hearing.1 See generally Chapter 16, AR 27-10 (C 17, 15 Aug 1977); SECNAVINST. 1640.10 (Aug. 1978); Part 202, Coast Guard Manual CG-488 (1977). Yet, such flexibility in procedure cannot be permitted to undermine the minimum constitutional requirement for such a hearing, namely “the detached judgment of a neutral magistrate.” Gerstein v. Pugh, supra at 114, 95 S.Ct. at 863. See Courtney v. Williams, 1 M.J. 267 (C.M.A.1976). Regardless of the procedural mechanism employed to assist the magistrate in his decision, it cannot alter his status as “someone independent of police and prosecution.” Gerstein v. Pugh, supra 420 U.S. at 118, 95 S.Ct. at 865.
In United States v. Hardin, 7 M.J. 399 (C.M.A.1979), a majority of the Court reasoned that under the Code, the pretrial obligations of the staff judge advocate place him in the posture of a prosecutor. See United States v. Smith, 13 U.S.C.M.A. 553, 557-58, 33 C.M.R. 85, 89-90 (1963); United States v. Hayes, 7 U.S.C.M.A. 477, 480, 22 C.M.R. 267, 270 (1957). In this sense, he is inextricably linked to the command function of policing and law enforcement in the military community. Such an institutional position is inconsistent with the neutrality and detachment required for the decision of a pretrial confinement magistrate. See Gerstein v. Pugh, supra 420 U.S. at 117 n. 19, 95 S.Ct. at 865 n. 19; United States v. Malia, 6 M.J. 65 (C.M.A.1978). Accordingly, a magistrate’s decision based upon the advice of such a person cannot realistically be considered neutral and detached. See United States v. Payne, 3 M.J. 354, 355 n. 6 (C.M.A.1977).
The second question we address is whether it was proper for the officer exercising special court-martial jurisdiction to make the pretrial confinement decision in these cases. See United States v. Malia, supra. Again, the critical requirement is that he be neutral and detached. Courtney v. Williams, supra.
In United States v. Malia, supra at 66, this Court stated that “[a] magistrate by definition is a judge.” This was said in contradistinction to a commanding officer who was admittedly predisposed in his pretrial confinement decision to a particular interest of law enforcement within his command. While such a commitment is understandable, it is not the constitutionally required attitude of a magistrate who must be neutral and detached, as a judge, in his pretrial confinement decision.2 A com*397manding officer who refers cases to courts-martial must be considered similarly disqualified as a matter of law. See United States v. Hardin, supra.
In light of Gerstein v. Pugh, supra, we believe the following persons authorized by the Code to confine are constitutionally qualified as a judicial officer3 to make the pretrial confinement decision:
First, a military judge constituted as such within the meaning of Article 26, UCMJ, 10 U.S.C. § 826.
Second, a military magistrate empowered by service regulations and untainted by and unconnected with the court-martial referral process.
Third, any other person authorized by the Code to confine who is not directly or particularly involved in the command’s law enforcement function. See United States v. Ezell, 6 M.J. 307, 326-30 (C.M.A.1979) (Fletcher, C.J., concurring).4
We have not perceived from the records coming to this Court actual instances where the Air Force procedure has operated unfairly. Therefore, we apply our decision in this case prospectively to hearings on pretrial confinement conducted subsequent to the issuance of our mandate and eases on granted petitions pending before this Court.
We find the pretrial confinement ordered by the officer exercising special court-martial jurisdiction in both these cases was unlawful. The decisions of the United States Air Force Court of Military Review are affirmed in all respects except that each “appellant will be credited with time served” for the period of his unlawful pretrial confinement. See United States v. Malia, supra at 68.
. See generally Owen, A Hard Look at The Military Magistrate Pretrial Confinement Hearing; Gerstein and Courtney Revisited, 88 Mil.L.Rev. 3, 33-40 (1980).
. Id. at 33-40.
. ABA Standards, Pretrial Confinement (Approved Draft 1968) (2d Approved Draft 1978).
. Contrary to the implication of the dissenting opinion, we recognize that due to military exigencies none of the above-mentioned persons may be available to conduct the required pretrial confinement hearing. In these cases, the convening authority and his staff judge advocate as a matter of military necessity can perform this function. See United States v. Ezell, 6 M.J. 307, 330 (C.M.A.1979) (Fletcher, C. J., concurring).
. Although, like other commanders, an officer exercising special court-martial jurisdiction may authorize searches and seizures on probable cause, his power in that regard does not exist because he is a “magistrate,” see United States v. Stuckey, 10 M.J. 347 (C.M.A.1981) (Everett, C. J.); therefore, the existence of such authority provides no precedent for his serving as a “magistrate” in matters of pretrial confinement.